The turmoil over the efforts by the state of Indiana to make lawful the decisions by operators of public accommodations to decline their services based on their stated religious views has died down because the legislature amended the offending parts of its legislation. The new law prohibits denying services based on sexual orientation. Yet its affirmations of religious liberty are meaningless.
The statute as amended basically states that in Indiana all persons have the right to the free exercise of their religion. But if that right clashes with any other claimed right, the courts must take both claims into account and analyze the free exercise of religion claim by using legal standards intended to recognize that it is fundamental.
That is already the law of the land by virtue of the Free Exercise Clause of the Constitution. It cannot be expanded by any state legislature without offending the Establishment Clause. The free exercise of religion is a fundamental liberty; it is fundamental because it is a natural right and is expressly protected by the Constitution. It is intentionally juxtaposed to be at tension with the Establishment Clause. The two clauses together mean that government may not aid religion, may not harm it, may not advance it and may not interfere with it.
The Indiana firestorm was the consequence of a governmental solution for no problem. It is absurd for a state to pronounce in its positive law the truism that rights guaranteed by the U.S. Constitution shall be honored in that state.
I say “absurd” because that already is the law of the land and any effort to restate it is superfluous and no doubt intended to mislead the people into believing that somehow, in Indiana, there is more religious freedom than elsewhere in the United States. There isn’t and there cannot be.
This misrepresentation occurred when Indiana’s original Religious Freedom Restoration Act stated that religious beliefs can trump legal obligations when the operator of a public accommodation is deciding whether to deliver his goods or services to a person whose status, past behavior or contemplated behavior runs counter to the operator’s religious beliefs.
By permitting the rejection of services because of sexual orientation — so long as that rejection was based on a religious belief — Indiana was effectively making discrimination based on sexual orientation lawful. No other state had done that.
Why do politicians support legislation and not concern themselves with whether it is constitutional? Why do they trick innocent voters into thinking they are getting something unique?

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